Stratford North Pty Ltd v Workers' Compensation Regulator & Ors [2023] QIRC 359

Queensland Industrial Relations Commission|2023-12-22

WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - where appellant employed as a truck driver - where appellant injured during employment - whether the appellant's employment connected with Queensland for the purpose of s 113 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) - whether appellant ''usually works" in Queensland - whether appellant is ''usually based'' in Queensland

Benson v RP Leisk Pty Ltd [2019] WADC 30

Covill v WorkCover Queensland [2022] QSC 171

Ferguson v WorkCover Queensland [2013] QSC 78

Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27

Singh v WorkCover Queensland [2019] QDC 177

Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78

Waters v Rerj Pty Ltd & Anor [2022] QDC 255

Mr A.C. Harding of Counsel instructed by Ms A.T Shey of IM Lawyers for the Appellant

Ms M.A Stone of Counsel instructed by Ms B. Barford

[1] Stratford North Pty Ltd ('the Appellant') appeals a decision of the Workers' Compensation Regulator ('the First Respondent') dated 9 August 2021, to accept an application for compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the WCR Act').

[2] The Second Respondent, Mr Jared Dinning, made a claim for workers' compensation following an injury he sustained on 15 March 2021. The First Respondent accepted the claim in a decision that was confirmed following a review by the Workers' Compensation Regulator.

[3] The Appellant appeals the decision of the Regulator on the basis that Mr Dinning's employment was not connected with Queensland as required by s 113 of the WCR Act.

[4] The question to be determined in this appeal is whether Mr Dinning's employment was connected to the State of Queensland in accordance with the WCR Act.

[5] The term 'State' is used throughout this decision to mean both States and Territories within Australia.

[6] The Appellant outlines the following history in his statement of facts and contentions:

(a) the Appellant is a company based in the Northern Territory (NT);

(b) in or about June 2020, Mr Jared Dinning commenced employment with the Appellant. There was no written contract of employment;

(c) The parties' intention was that Mr Dinning would be employed to transport and deliver oversized demountable huts from Brisbane to the Granite gold mines in the NT ('the huts job');

(d) Mr Dinning's employment commenced with him being required to attend and remain in the NT for the first four weeks of his employment;

(e) Mr Dinning then commenced driving trucks to collect the huts from Brisbane and deliver them to the mines in the NT;

(f) In about mid-July 2020, due to COVID-19 related restrictions, an arrangement was subsequently adopted whereby Mr Dinning drove the huts from Brisbane to the NT border and another driver took the huts from the border to the mines;

(g) At the completion of the huts job, the Appellant continued to employ Mr Dinning as an interstate truck driver. The parties' intention was that Mr Dinning would drive long distance interstate freight consignments; and

(h) Mr Dinning made a claim for compensation on or about 6 April 2021 for an injury said to have occurred on 15 March 2021.

[7] Section 113 of the WCR Act provides as follows:

(1) Compensation under this Act is only payable in relation to employment that is connected with this State.

(2) The fact that a worker is outside this State when the injury is sustained does not prevent compensation being payable under this Act in relation to employment that is connected with this State.

(3) A worker's employment is connected with -

(a) the State in which the worker usually works in that employment; or

(b) if no State or no 1 State is identified by paragraph (a) , the State in which the worker is usually based for the purposes of that employment; or

(c) if no State or no 1 State is identified by paragraph (a) or (b) , the State in which the employer's principal place of business in Australia is located.

(4) In the case of a worker on a ship, if no State or no 1 State is identified by subsection (3) , a worker's employment is, while on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than 1 State) the State in which the ship most recently became registered.

(5) If no State is identified by subsection (3) or (if applicable) (4), a worker's employment is connected with this State if -

(a) the worker is in this State when the injury is sustained; and

(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(6) In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer.

(7) However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

(8) Compensation under this Act does not apply in relation to the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 (Cwlth) applies to the worker's employment.

State, in a geographical sense, includes a State's relevant adjacent area as described in schedule 4 .

[8] The Appellant contends that Mr Dinning did not have a single State in which he ''usually works'' and that the State in which Mr Dinning was ''usually based'' for the purposes of that employment was the NT.

[9] In the alternative, the Appellant submits that Mr Dinning did not have a single State where he usually worked or was usually based, in which case the State of connection is the principal place of business in Australia being the NT.

[10] The Appellant's submissions regarding s 113(3)(a), in summary, are as follows:

(a) It is not contentious that Mr Dinning worked as an interstate truck driver, with Mr Dinning confirming as much in oral evidence[1];

(b) When Mr Dinning suffered the injury, he was preparing for a trip to Port Headland, WA;

(c) Between June 2020 and March 2021, Mr Dinning spent about 107 workdays in Queensland; 59 in the NT and 50 across NSW, Victoria, and Western Australia;

(d) Upon further assessment using the documents in the trail bundle, the breakdown is that Mr Dinning spent 41 days in the NT; 60 days in Queensland; 5 days in South Australia and 2 days in NSW[2];

(e) Regardless of the precise number of workdays Mr Dinning spent in Queensland, in the NT and in the other States, it is clear he usually worked across mainland Australia;

(f) It follows that Mr Dinning did not have a single state that he ''usually works'' in, thus requiring a consideration of the next step in s 113(3)b).

[11] The Appellant's submissions in regard to s 113(3)(b) are summarised as follows:

(a) The work location was across Australia, supporting a finding that the employment was not based in Queensland;

(b) There was no arrangement for Mr Dinning to routinely attend a place to receive directions or collect materials or equipment in relation to the works. However, the arrangement was that if the truck was not in use Mr Dinning would drive with the truck to the NT where the truck would remain while it was not in use so Mr Bloomfield could service it;

(c) Mr Dinning routinely reported to Mr Bloomfield in relation to the work and the location he reported to was wherever Mr Bloomfield was situated, which was primarily in the NT. Mr Dinning's evidence provides the following[3]:

And that work was coming to the company - that's Brad - in the Northern Territory, wasn't it? - If Brad was in the Norther - Northern Territory, then yes. He was arranging the work via apps and websites, so - - -

He was arranging the work, wasn't he? - Yeah. Most of it, yes.

And he was - you were reporting to him about where to go? - Yep.

And you'd report it to him when you'd unladed? - Yep.

And that included you sending him photos of the delivery docket ---? - Yes.

---so that he could do invoices up? -Yes. As soon as it was delivered.

We talked about you reporting back to Mr Bloomfield. And one of the things you reported back to him about how you were going in terms of needing a break because there were restrictions on how many days you could drive without a break? - Yes. Bradley should be aware of that. Being a heavy vehicle operator, you need to have your seventh day off.[4]

(d) The location from which Mr Dinning's wages were paid was the NT. The Appellant's office was in Alice Springs and Mr Bloomfield made the payments from his business bank account using his computer at his depot in Alice Springs. On the occasions when he wasn't in Alice Springs, he would make payments from his truck which was usually in the NT.[5]

(e) Mr Dinning had previously advised a Workcover claims' officer that his work was based in the NT. This was summarised as follows in the WorkCover record[6] :

Didn't register the claim initially as was worried boss didn't have WC

Did not do an incident report, it's only the boss and me. I call him straight away.

- The person who was there was Bhen Boyes. (cousin) - boss is Bradley Bloomfield - I stepped back when changing tyres and felt something go

Paid under TFN. Ful time. Salaried, but diff rate when at yard to on road - Truck is supplied by Bradley.

I never get home, I'm often away for months at a time.

I drive all over the country. Work is based out of NT however.

(f) The national driver work diary daily sheet, which was completed by Mr Dinning almost invariably records 'NT' as his base. This record is a matter of weight because Mr Dinning agreed that he was familiar with the concept that a driver has a base and that is recorded with the daily sheet.

[12] The Respondents submit that Mr Dinning satisfies the test of having usually worked in Queensland and having usually based himself in Queensland for the purposes of his employment.

[13] The Respondents' submissions regarding s 113(3)(a), in summary, are as follows:

(a) Mr Dinning worked 'habitually or customarily' or 'in a regular manner' in Queensland both the entire duration of Mr Dinning's employment, and particularly after the huts job which is the period of time when he was injured;

(b) Following the initial four-week period spent in the NT in June and July 2020, Queensland is the only State in which Mr Dinning worked in every month of his employment;

(c) Although it cannot be said it was the parties' intention that Mr Dinning would work predominantly in Queensland, he did in fact work predominantly in Queensland and the reality of his employment cannot be ignored;

(d) Mr Dinning spent considerably less time in the NT after the huts job (9.43% after the huts job compared to 29.71% during the job);

(e) Mr Bloomfield maintained it was his intention that Mr Dinning would drive the full route between Yatala and the Granites Mine, but for COVID-19 related border restrictions.[7] This would have had the effect of increasing Mr Dinning's time in the NT at least during the huts job. Mr Bloomfield's evidence must be considered in light of the fact that COVID-19 had already begun to affect Stratford's operations, as evidenced by the fact that Mr Dinning was required to quarantine for a period of two weeks when he first commenced his employment in June 2020;

(f) Mr Bloomfield also stated border restrictions commenced around the first trip of the huts job[8] and he accepted in cross-examination that it entered his mind that it may be difficult for Mr Dinning to enter the NT.[9] Consequently, it is reasonable to infer the prospect that Mr Dinning would not be able to freely enter the NT (or leave Queensland and return) altered any intention the parties had with respect to Mr Dinning's employment;

(g) Even if Mr Dinning had worked more in the NT during the huts job, the reality of his employment changed after the huts job. Whilst regard must be had to Mr Dinning's entire employment, it is the particular period in which he was injured that ought to be given more weight;

(h) The Appellant's calculations of the time spent in locations only covered the period during the huts job and did not address the balance of Mr Dinning's employment; and

(i) Although Mr Dinning may have worked in other States during his employment, it cannot be said that he worked in these States in a regular manner such that he had a connection to any State other than Queensland. Consequently, Queensland is the only State capable of satisfying the test in s 113(3)(a).

[14] The Respondents do not agree with the Appellant's 'overview of locations' assessment, referring to [6] of Schedule A to Mr Dinning's SOFC and Annexure A and B to the Respondents' submissions. A summary of Mr Dinning's time worked, in each State he worked, between July 2020 and March 2021 is set out at Annexure A, and Annexure B sets out a summary of Mr Dinning's time and location both during and after the huts job. The Respondents submit that these summaries reveal that, over the entire course of his employment, Mr Dinning spent:

(i) The majority (57.59%) of his time in Queensland;

(ii) Less than a quarter of his time (24.08%) in the NT; and

(iii) Less than 10% of his time in any other one State.

[15] The Respondents' submissions regarding s 113(3)(b), in summary, are as follows:

(a) Mr Dinning lived in Queensland and his evidence was that that Mr Bloomfield knew he lived in Queensland[10];

(b) Mr Bloomfield's evidence was that Stratford did not have sufficient work in the NT to justify Mr Dinning's truck being based in the NT[11];

(c) Mr Dinning maintained a residential premises in Queensland and Mr Bloomfield gave evidence Mr Dinning persistently wanted to return to Queensland[12];

(d) Mr Bloomfield accepted in cross-examination that when the truck was not in use, it would be parked in Queensland ready for when Mr Dinning would recommence work[13]. Mr Dinning's evidence was that he would park the truck at a family member's home, or otherwise at a property owned by his uncle which contained a workshop, truckyard and equipment including a forklift[14];

(e) Mr Dinning explained his uncle was also a truck driver and had the tools and knowledge to assist him in maintaining the truck[15];

(f) Any truck maintenance or services done in Alice Springs at Stratford's premises was done there only for convenience either during the huts job, or immediately after its conclusion[16];

(g) Mr Dinning received directions from, and reported to, Mr Bloomfield by telephone, where Mr Dinning was located which was predominantly in Queensland;

(h) It is nonsensical to draw any conclusion regarding where Mr Dinning was based from the location where Mr Bloomfield sent those direction or received those reports;

(i) Mr Dinning's evidence was that he would always leave Queensland with a full load, but he was not always able to obtain a full load to return to Queensland[17]; and

(j) The truck was periodically and routinely serviced and maintained in Queensland by either Mr Dinning at his uncle's premises, or by Northside Diesel in Caboolture on at least three occasions during Mr Dinning's employment and one occasion shortly after Mr Dinning's employment ended[18].

[16] The Respondents refer to Mr Bloomfield's evidence that his intention was that Mr Dinning would return the truck to Alice Springs for regular servicing and this is where the truck would stay when not in use. The Respondents submit that this was not a shared or mutual intention between the parties[19] and that it was implausible that such an intention did in fact exist having regard to Stratford's reliance on interstate freight work given Mr Bloomfield's concessions in evidence that he did not yet have sufficient work in the NT.

[17] The Respondents refer to the Appellant's evidence in which it can identify only one instance in which the truck was serviced in Alice Springs which was immediately after the conclusion of the huts job.[20] Mr Dinning's evidence was that he did not otherwise return to Alice Springs for the purpose of having the truck serviced.[21]

[18] The Respondents submits that Mr Dinning did not accept under cross-examination that Mr Bloomfield's intention was that the truck be returned to the NT. Rather, Mr Dinning's evidence was that he was happy to have time in Alice Springs 'after rattling around on the Tanami' referring to the period during the huts job when it was convenient to return to Alice Springs because the job was in the NT. Mr Dinning's evidence was that it was 'easier' to service the truck in Queensland where 'parts are cheaper and [he] had more access to equipment and stuff' and whilst it 'makes sense' why Mr Bloomfield would want the truck serviced in Alice Springs 'it wasn't plausible because [he would] never be there' and 'it wasn't going to happen'.[22] Further, Mr Dinning elsewhere confirmed he had never been directed to return to the NT to have the truck serviced.[23]

[19] The Respondents submit that Mr Bloomfield's evidence that the truck was not maintained in Queensland because the work done to it was 'not routine' but rather an 'emergency' and had to be done in Queensland because he 'had no other choice'[24] was disingenuous having regard to the following:

Mr Bloomfield's evidence that he tried to have the truck serviced every 15, 000km and where that could not be done in Alice Springs, he would arrange for it to be done in Queensland[25];

The regularity with which the truck was serviced in Queensland, noting the truck was serviced by Northside Diesel:

In or around August 2020, November 2020, January 2021 and March 2021 - approximately every three to four months; and

at least the first two services appear to have occurred approximately 15,000km after the truck had last been serviced[26].

The October 2020 service coincided with a period of leave taken by Mr Dinning supporting his evidence was that it was simply convenient to have the truck serviced in Queensland to minimise the truck's downtime.[27]

[20] On 15 March 2021, Mr Dinning filed an application for compensation with WorkCover Queensland in relation to a back injury sustained whilst performing work on the Appellant's truck in Morayfield, Queensland.

[21] Compensation under the WCR Act is only payable in relation to employment that is 'connected with' Queensland pursuant to s 113 of the WCR Act. The issue to be determined in this appeal is whether the employment of Mr Dinning was connected with Queensland.

[22] Mr Dinning commenced employment with the Appellant as a truck driver on or about June 2020, following which he remained in the NT at the Appellant's residence for a period of 4 weeks readying the truck to drive to Queensland to commence the huts job.

[23] It appears that the mutual intention of the parties was that Mr Dinning would transport huts from Brisbane to the gold mines in the NT. In mid-July 2020, the arrangement changed due to COVID-19 restrictions. Under the new arrangement, Mr Dinning drove the huts from Brisbane to the NT border where another driver took the trailers and drove the huts from the border to the mines.

[24] Following the completion of the huts project in or around November 2020, Mr Dinning continued to work for the Appellant as an interstate truck driver.

[25] The Appellant submits that between July 2020 and November 2020, Mr Dinning spent 60 days in Queensland; 41 in the NT; 5 days in South Australia and 2 days in NSW. This assessment was based on the Fuel Maintenance and Inspection Records available between July 2020 - November 2020. Curiously the Appellant maintains that this assessment covers the entirety of the employment relationship[28] despite the employment continuing until March 2011.

[26] The Respondents submit that between July 2020 and March 2021, Mr Dinning spent 110 days in Queensland; 46 in the NT; 18 in South Australia; 3 in Victoria and 7 in Western Australia. The Respondents submits that this assessment was based on the Fuel Maintenance and Inspection Records available between July 2020 and November 2020, records of Mr Dinning's fuel car usage, Mr Dinning's driver's logbook and delivery dockets.

[27] The first two weeks of Mr Dinning's employment was spent in the NT quarantining due to COVID-19 requirements.

[28] The cascading test to determine a worker's connection to a State is outlined in s 113(3) of the WCR Act:

A worker's employment is connected with -

(a) the State in which the worker usually works in that employment; or

(b) if no State or no 1 State is identified by paragraph (a) , the State in which the worker is usually based for the purposes of that employment; or

(c) if no State or no 1 State is identified by paragraph (a) or (b) , the State in which the employer's principal place of business in Australia is located.

[29] In considering the cascading steps in s 113, Applegarth J stated in Ferguson v WorkCover Queensland[29]:

...There may be no State, or no one State, in which the worker usually works. In such an event the connection is determined by inquiring about "the State in which the worker is usually based for the purposes of that employment" and if that inquiry does not yield an answer then the next test is to ask "the State in which the employer's principal place of business in Australia is located.

[30] Section 113(6) of the WCR is outlined as follows:

(6) In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer and the intention of the worker and employer.

[31] In Covill v WorkCover Queensland[30], the term 'intention' was considered by Applegarth J who stated:

The single word 'intention' suggests a mutual or shared intention held by both the worker and employer, rather than a subjective intention held by one or the other. Any mutual intention is a matter to which regard must be had.

[32] No written employment contract existed between the parties to indicate any intention with regard to the location Mr Dinning was to usually work. The evidence does not support a conclusion that the parties intended that Mr Dinning would usually work in Qld or the NT. The intention at the commencement of employment was that Mr Dinning would work in both Qld and the NT, and following the end of the huts job, the intention changed to working in other States. Mr Dinning evidence was as follows:[31]

And you said to Mr Bloomfield words to the effect that you were happy to spend time there as needed? -- I'm a single male. I don't have any attachments to anywhere. I want to go where the work was. I wanted to work. I was there to work.

It didn't matter. Anywhere where he sent me in Australia, I was happy to stay.

[33] Mr Bloomfield gave evidence that it was always the intention that if the truck was not in use that Mr Dinning would drive with the truck to NT. This was to allow Mr Bloomfield to service the vehicle while it was not in use. Mr Dinning's evidence was that Mr Bloomfield ''might have''[32] stated this intention to him however it was not plausible as he was never there. The evidence indicates that even if that had been Mr Bloomfield's intention, it only occurred on one occasion following the huts job.

[34] The evidence supports a determination that the intention of the parties was that Mr Dinning would work in both Queensland and the NT during the huts job, with the maintenance of the truck occurring in the NT. Given that the initial intention was for Mr Dinning to drive the huts along the full route to the mines in the NT, the time spent working in the NT would have been greater. The reality however is that as a result of COVID-19 border restrictions[33], Mr Dinning did not always drive the truck all the way to the mines in the NT.

[35] In cross-examination Mr Bloomfield accepted that it had entered his mind that it may be difficult for Mr Dinning to enter the NT due to COVID-19 restrictions[34]. It would be fair to determine that even if Mr Bloomfield had intended on Mr Dinning working out of NT, any such intention changed soon after his employment.

[36] Following the huts job, the Appellant submits that it was the mutual understanding of the parties that Mr Dinning would perform work driving freight and maintaining the truck across Australia and that he would be located wherever the work was located. The Appellant contends that this is in fact what occurred both during the initial period of employment and for the duration of the employment relationship.

[37] Following the end of the hut job, the evidence of Mr Dinning was that he had no specific intention regarding a work base and that Mr Bloomfield intended on using the NT as the work base for servicing and maintaining the truck. In the absence of a mutual or shared intention as per Covill, I do not consider that there was any clear intention regarding the location in which Mr Dinning would usually work.

[38] As required by s 113(6), Mr Dinning's work history will be examined as part of the consideration below of s 113(3)(a) and s 113(3)(b).

[39] Section 113(7) of the WCR is outlined as follows:

(7) However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

[40] It is not in dispute that upon the commencement of Mr Dinning's employment, he lived with Mr Bloomfield in the NT for approximately four weeks preparing the truck to undertake the huts contract work. Mr Dinning lived temporarily with the Appellant during this period.

[41] After the truck was, Mr Dinning commenced work driving the truck to collect huts from Brisbane and deliver the huts to the mines in the NT initially, and then to the NT border.

[42] The Appellant submits that it would be wrong to entirely disregard the initial period of employment when Mr Dinning worked in the NT, citing Klemke v Grenfell Commodities Pty Ltd[35] ('Klemke') and Singh v WorkCover Queensland[36] ('Singh').

[43] In Singh, the Queensland District Court determined that a period in which the worker had been engaged for less than six months was relevant because the employment was of an indefinite duration rather than a temporary arrangement .[37] Similarly, the facts in Klemke were that the presence of the worker in the state was less than six months, but that the intention of the parties was that the worker was to continue working in that state. The circumstances of this matter are not analogous to Singh or Klemke in that Mr Dinning's presence in the NT at the commencement of his employment was clearly a temporary arrangement. This is reflected both in the evidence of the parties' intentions and as a matter of fact when considering Mr Dinning's work history.

[44] The period of time during which Mr Dinning's resided with Mr Bloomfield was a temporary arrangement of less than 6 months. Accordingly, pursuant to s113(7), no regard is had to this arrangement.

Section 113(3)(a) - 'usually works'

[45] Section 113(3)(a) of the WCR Act is outlined as follows:

(3) A worker's employment is connected with -

(a) the State in which the worker usually works in that employment; or

[46] In Ferguson v WorkCover Queensland[38], Applegarth J stated:

[32] The authorities which I have discussed apply the ordinary meaning of ''usually'' in its statutory context and conclude that the expression ''usually works'' means the place where the worker habitually or customarily works,or works in a regular manner. The determination of the State in which the worker ''usually works'' in that employment is not determined by deciding the State in which the worker spends the majority of his or her work time. The time spent in any particular State is still relevant. It is possible that a worker usually works in more than one State. The subsection does not involve a mathematical test. There is no fixed percentage of time spent working, above which a worker is taken to usually work in a State. It is possible to imagine clear cases in which the worker's presence in a State is fortuitous, fleeting, uncommon or sufficiently unusual that one can easily conclude that the worker does not usually work in the relevant employment in that State. Other cases may be more finely balanced.

[33] The relevant provisions make specific provision to not regard ''any temporary arrangement under which the worker works in a State for a period of not longer than six months'' in deciding whether a worker usually works in a State. Leaving aside such a temporary arrangement, an occasional, even regular attendance in another State for training or attendance at a meeting may not constitute a sufficient connection. In such a case the worker's occasional presence in a State for work related purposes may mean that he or she does not ''usually work'' in that State.

[47] In Ferguson, Applegarth J considered a scenario in which the majority of a worker's time in employment is spent in one State whilst working regularly in a second State:

[34] The authorities illustrate that the determination of whether there is a State in which the worker ''usually works'' in that employment depends upon the circumstances of the particular employment. The fact that a worker's time in employment is predominantly spent in one State does not necessarily mean that the State is the only State in which the worker ''usually works''. The worker will usually work in more than one State if the worker habitually or customarily works in a second State. In such a case there will be no one State identified as being ''the state in which the worker usually works in that employment'' and the inquiry will turn to determining the State in which the worker is ''usually based'' for the purposes of that employment. [citations omitted] [emphasis added]

[48] Whilst the time spent in each state is relevant, Ferguson is authority that an assessment of where a worker 'usually works' does not involve a mathematical test to determine a percentage of time in which a worker can be said to usually work in a particular State. Noting that Ferguson also confirmed that the time spent in any State is relevant, it is necessary to consider Mr Dinning's movements between the States. An assessment of the time spent in each State indicates that the majority of days were spent in Qld however a substantial number of days were also spent in the NT, with a lesser number in other States.

[49] When considering the work history of Mr Dinning, it is necessary to consider whether he worked 'habitually or customarily' or worked 'in a regular manner' in any State.

[50] If Mr Dinning's connection with a State is 'fortuitous, fleeting, uncommon or sufficiently unusual' it follows that he would not be considered to have 'usually worked' in that State. However, it may also be the case that regular attendance in another State may not indicate that he 'usually worked' in that State.[39]

[51] In the Appellant's written closing submissions they contend that between July 2020 and November 2020, Mr Dinning spent 60 days in Queensland, 41 days in the NT, five days in South Australia and 2 days in NSW.[40] The Respondents submits that this assessment only deals with the period during the huts job which is more favourable to the Appellant, however the Appellant maintains that this deals with the entirely of the employment relationship.

[52] The Appellant submits that regardless of the precise number or workdays Mr Dinning spent in each State, it is clear that he usually worked across mainland Australia for the period during and after the huts job.

[53] The Respondents submits that Queensland is the only State in which Mr Dinning worked 'habitually or customarily' or 'in a regular manner' in that between July 2020 and March 2021 Mr Dinning worked 110 days in Queensland, 46 days in the NT, 18 days in South Australia, 7 days in NSW, 3 days in Victoria and 7 days in Western Australia.[41]

[54] The Respondents submits that over the course of Mr Dinning's employment he spent 57.59% of his time in Queensland, 24.08% of his time in the NT and less than 10% of his time in any other one State. The Respondents also contend that following the huts job only 9.43% of Mr Dinning's time was spent in the NT.[42]

[55] The Appellant submits that the Respondents' statistics outlining where he spent the majority of time applies a 'mathematical test' which Applegarth J indicated in Ferguson was not permissible.

[56] Following the initial four-week period spent in the NT in 2020, the Respondents submits that Queensland is the only State in which he worked in every month of his employment.[43]

[57] The Appellant submits that regardless of the precise number of workdays Mr Dinning spent in each State, the pattern suggests that Mr Dinning worked across mainland Australia and so did not have a single State that he 'usually works' in, thereby requiring a consideration of s 113(3)(b).

[58] The decision in Ferguson provided that whilst the assessment of where a worker 'usually works' does not involve a mathematical test, the time spent in any particular State is still relevant. The evidence shows that the number of days spent in each state provided by the parties indicates that the majority of days were spent in Qld however a substantial number of days were also spent in the NT, with a lesser number in other States.

[59] The Appellant submits that the vast majority of the work following the huts contract was as a subcontractor to Korunye and J & C Meaney Transport ['the transport companies']. Mr Bloomfield's evidence was that Korunye had depots in Alice Springs and South Australia and Meaney Transport had depots in Darwin and South Australia.

[60] The Respondents submits that the locations of the transport companies are not relevant, and that it is only the location of the employer that may be relevant in accordance with s113(3)(c). The Appellant however contends that the arrangement for where Mr Dinning would be located depended upon the nature of the transport jobs and where that work was located. The Appellant submits that the work performed by Mr Dinning was tied to the work the transport companies gave to the Appellant, which was to provide interstate transport across mainland Australia.

[61] Whilst it is only the location of the employer that is relevant to a consideration of s 113(3)(c), the location of the transport companies is not irrelevant to a consideration of where Mr Dinning usually worked. The location of these companies is a relevant consideration for the purposes of determining where he usually worked.

[62] The difficulty with the Appellant's submission is that when the location of the transport companies is considered it does not support a finding that Mr Dinning usually worked in the same State as the transport companies. It is unclear how an employment arrangement that is said to primarily involve Mr Dinning transporting goods from Darwin to South Australia (via Alice Springs) could result in spending significantly more time in Queensland than the NT. The only reasonable conclusion is that it may have been intended that Mr Dinning primarily work in these locations, however the reality is that he ended up spending much more time working in Queensland.

[63] The Appellant submits that Mr Dinning's work outside Queensland in other States was 'customary, common and frequent'. The Appellant refers to the circumstances in Waters v Rerj Pty Ltd & Anor[44] noting that in similar circumstances Mr Dinning spent entire days and more outside Queensland travelling significant distance performing his duties. The Appellant submits that, as was found in Waters, these circumstances mean that Mr Dinning did not usually work in Queensland.

[64] The Appellant contends that in no way can the freight deliveries Mr Dinning made in other States be described as 'fleeting or ephemeral'[45].

[65] The evidence indicates that it was the mutual understanding of the parties that, following the huts job, Mr Dinning's work would involve driving the truck to transport freight across Australia. This understanding extended to Mr Dinning being located wherever the work was located, in any State across Australia. Even when the initial period of work is excluded, the pattern of work reflected this arrangement for the duration of employment. It cannot be said that Mr Dinning worked 'habitually or customarily' or 'in a regular manner' in the NT when the evidence indicates that this occurred irregularly in 2020 and he only worked one day in the NT in 2021. Neither can it be determined that Mr Dinning worked 'habitually or customarily' or 'in a regular manner' in Queensland in circumstances whereby the majority of his work time was spent outside of Queensland in 2021.[46]

[66] The evidence does not support a finding that Mr Dinning usually worked in Qld or the NT, or any other one State, during his employment. Accordingly, it is necessary to consider s 113(3)(b) of the WCR Act.

Section 113(3)(b) - 'usually based'

[67] Section 113(3)(b) of the WCR Act is outlined as follows:

A worker's employment is connected with -

(b) the State in which the worker is usually based for the purposes of that employment; ...

[68] Consideration of where the worker is ''usually based'' requires consideration of where the worker is customarily, commonly, or habitually based.[47]

[69] In Tamboritha Consultants Pty Ltd v Knight[48], the court stated that the use of the term ''usually based'' suggests it has a different meaning to the term ''usually works'' however, it also noted that they may coincide.[49]

[70] In Covill, Applegarth J outlined the considerations relevant to determining where a worker is 'usually based for the purposes of employment' includes the following:

The State in which a worker is usually based may not be the place in which the worker spends the majority of their time;
The State in which a worker is usually based may, but is not required to, coincide with the State in which the worker usually works;
It may be inappropriate to place undue weight upon the place at which the worker starts and finishes each working day; and
The location at which the worker routinely attends to receive directions or collect materials or equipment may be highly relevant.

[71] In Tamboritha the court considered the types of matters contemplated by the phrase 'usually based for the purposes of that employment' to include[50]:

The location the worker reports to in relation to the work, which may not be the same place in which a majority of the worker's time is spent each day;
The location from which the worker's wages are paid; and
The location at which the worker routinely attends during the term of employment to receive directions or collect materials or equipment may be highly relevant.

[72] As noted in Ferguson[51], an assessment of where a worker is 'usually' based requires consideration of whether the worker is customarily, commonly or habitually based in that place.

[73] The court considered in Tamboritha that an assessment of the percentage of time the worker spends in a particular State is not useful in the application of the test in deciding what is the State of connection.[52]

[74] The Appellant submits that consideration must be had of the location the worker routinely attends to receive directions or collect materials or equipment in relation to work and contends in this matter these locations would include the Korunye and Meaney Transport's depots.

[75] The Appellant referred to Benson v RP Leisk Pty Ltd[53] in which the Court identified as relevant features that the worker was paid from WA and kept in contact with the managing director of the employer who was based in WA before finding that the worker was 'usually based' in WA for the purposes of his employment.

[76] It is not in dispute that the Appellant kept in contact with Mr Dinning from Mr Bloomfield's base in the NT. However, after the initial period, the evidence does not indicate that Mr Dinning routinely attended the NT to receive directions or collect materials or equipment.

[77] Mr Dinning gave oral evidence of residing at an address north of Brisbane in Queensland. This evidence was supported by a General Tenancy Agreement to which he was party dated 24 July 2020.[54]

[78] The Appellant submits that the fact that Mr Dinning kept a residence in Queensland is irrelevant. The Appellant contends that there was no requirement associated with the employment that Mr Dinning be living in any particular state because the nature of the employment was that he would be located wherever the work was located.

[79] The Appellant contends that given the nature of his work, Mr Dinning's home 'was in fact his truck' and that he was 'usually based for the purposes of employment' in the NT.

[80] As noted above, from mid-July 2020 until the completion of the huts contract in November 2020, Mr Dinning drove trucks with trailers from Brisbane to the NT Border and Mr Bloomfield then drove the trailers to the mines. Following the completion of the huts work, Mr Dinning undertook interstate driving work.

[81] It appears that this change in Mr Dinning's employment resulted in significantly more of his time being spent in States other than the NT. Mr Bloomfield confirmed in evidence that after the huts job, Mr Dinning did not spend more than two days in the NT at any one time[55].

[82] The WorkCover Communication's Report (WC Report) records conversations between various people and employees of WorkCover. The Appellant refers to the summary of a conversation between a WorkCover employee and Mr Dinning on 12 April 2021, in which the WC Report records that ''work is based out of NT''. The Respondents submit that the relevant test is where Mr Dinning was usually based for the purposes of employment, not where the work was based.

[83] In response to a question in cross-examination regarding the WC Report, Mr Dinning gave the following evidence:

Do you say that you didn't say that your work was based out of the Northern Territory? -

Well, it was based out of - [Mr Bloomfield's] house is at Alice [Springs] - yes - but I was based out of Brisbane.[56]

[84] The Respondents submits that the WC Report is inherently unreliable as it does not record the questions asked of Mr Dinning and it does not purport to be a complete or accurate transcript of the conversation. The Respondent contends that the WC Report contains a shorthand record of Mr Dinning's responses and inferences or assumptions by the WorkCover representative and conclusions reached by the WorkCover representative. One example of this is the typed comment - 'Is aware he needs a WCMC'. The Respondents contend that the WC Report contain only a shorthand record of Mr Dinning's responses.

[85] The Appellant contends that the WC Report is reliable, noting that Mr Dinning agreed that the other parts of the conversation were accurate indicating that the statement ''work is based out of NT'' is also accurate.

[86] It seems to me that the WC Record cannot be relied upon as a verbatim transcript of the conversation, however weight can be placed on the record as generally reflecting the parties understanding of the factual arrangements at the time the conversation occurred.

[87] I note that the WC Report records that Mr Dinning stated ''I use my uncles yard to do maintenance''.[57]

[88] The evidence shows that the servicing occurred where Mr Dinning was located, which was where the truck was located[58].

[89] I also note the WC Report records a conversation between Mr Bloomfield and WorkCover[59], outlined as follows:

[90] The WC Report indicates that Mr Dinning was of the view that his work was based out of the NT, which is an accurate reflection of where Stratford was based, but it did not indicate that Mr Dinning was of the view that he was based out of the NT. It also indicates that Mr Bloomfield considered Mr Dinning to be a fulltime employee based in Queensland. This is not consistent with a view that Mr Dinning was based in the NT or in any other State for the purposes of his employment.

[91] The WC Report was also consistent with Mr Dinning's oral evidence that he undertook maintenance on the truck in Queensland. Whilst it may have been the original intention of Mr Bloomfield that he undertake maintenance and servicing of the truck in the NT, it appears that the majority of this work was undertaken by Mr Dinning or mechanics in Queensland.

[92] The documentary evidence does not support the Appellant's contention that maintenance work was only performed on the truck in Queensland in the case of emergencies. Mr Bloomfield gave evidence that he tried to have the truck serviced every 15,000 km, and when that could not be done in the NT, he arranged for it be done in Queensland. The truck was regularly serviced in Queensland as evidenced by invoices from Northside Diesel for work performed in Queensland.

[93] The October 2020 service coincided with a period of leave taken by Mr Dinning. This supports the evidence of Mr Dinning that it was simply convenient to have the truck serviced in Queensland to minimise the truck's downtime.[60]

[94] Many of the cases referred to by the Appellant indicate that the location of where the work is based is a relevant consideration, however this matter does not involve a single depot into which the worker presents regularly. The documentary evidence indicates that Mr Dinning did not attend the depots in the NT for weeks at a time and in fact on only one occasion did he spend two consecutive days in the NT.

At a glance

Court

Decision date

Source

Judgment (235 paragraphs)

Parties

Legislation Cited (2)